Art 35A Killer of Fundamental Rights of Jammu and Kashmir citizens

  • By Bhim Singh
  • September 8 2017
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The truth hidden behind this invasion of the Fundamental Rights of Indian citizens residing in the State of Jammu & Kashmir (Permanent Residents) has not been brought to the attention of parliamentarians or jurists.

 

I being one of the victims of this arbitrary Law, Article 35 (A), am trying to re-open the hidden pages of history and show how and why the people of J&K were brought under such suppressive and oppressive Laws which grew under the shadow of Article 35 (A), depriving the people of the Fundamental Rights which they were entitled to as citizens of India.

 

The citizens of India, redefined as Permanent Residents of the State of J&K, remain denied of their basic human rights defined in the Constitution of India (Chapter-III, Fundamental Rights). The citizens of India residing in J&K have remained deprived of their basic human rights/fundamental rights since 1954.

 

The Legacy of 1953

 

Sheikh Mohd. Abdullah was crowned as Chief Minister of J&K in 1977 under the Indira-Sheikh Accord, which was opposed by this author (Bhim Singh), who was Secretary-General of the Indian Youth Congress. The Congress surrendered with its 45 MLAs (out of 65) to the dictates of Sheikh Abdullah. Sheikh Abdullah, the main victim of Article 35 (A) in 1953, realised that authoritarian rule was only possible in J&K and he agreed to retain Article 35 (A) which was introduced on May 14, 1954 by the then President of India, Dr. Rajendra Prasad, on the recommendation of the then Prime Minister Jawaharlal Nehru.

 

Sheikh Abdullah’s National Conference won the election to the State Assembly in 1977. This was the first time that this author also won the State Assembly election with a thumping majority as Congress candidate. The Congress won only seven seats in the Assembly. The National Conference rule smashed all the decencies of the ruling party, swallowing huge properties which are still under the control of the Abdullas in the state.

 

Sheikh Abdullah used the same Detention Rule which was applied against him and his comrades for years by the Central Government. This author was jailed under the Detention Laws for years, even though he was an Assembly Member of the Congress Party. All the tragedies /suppressions /oppressions committed by earlier governments against Sheikh Abdullah’s party and supporters were repeated by Sheikh Abdullah and after his death by his son, Dr. Farooq Abdullah, and others.

 

This author resigned from the Congress and also from the State Assembly and floated J&K National Panthers Party to launch a democratic movement to ensure that justice was delivered to all residents of J&K who were being ruled ruthlessly and mercilessly with dictatorial Laws.

 

The Constitution of India could not enter the State of J&K because of the presence of the temporary Article 370. The Fundamental Rights incorporated in Chapter-III of the Constitution of India (Articles 11 to 35) have not been made applicable to the citizens of India residing in the State of J&K which acceded to the Union of India on October 26, 1947.

 

Lord Mountbatten, the then Governor-General of India, signed the Instrument of Accession on October 27, 1947. But Article 370 was incorporated in the Constitution of India on January 26, 1950 keeping the State of J&K away from the Union of India. The Instrument of Accession signed by Maharaja Hari Singh was not utilized constitutionally and J&K was not integrated into the Union of India.

 

The temporary Article 370 deserves a critical and serious reading. Maharaja Hari Singh was allowed to continue as Ruler of the State though he had signed the Instrument of Accession like the other 575 Rulers. Article 370 made it clear in its declaration that the Parliament of India shall have no constituent power to legislate in respect of any subject concerning the State of J&K. This power was vested in the President of India alone. The Constituent Assembly of India had clearly mentioned that the Maharaja shall continue as a Ruler of J&K.

 

Sheikh Abdullah who was friends with Jawaharlal Nehru constituted a parallel Constituent Assembly in J&K, picking up his political agents as its Members. This Constituent Assembly of J&K under the leadership of Sheikh Abdullah passed a draconian Resolution on August 20, 1952 dismissing Maharaja Hari Singh and declaring J&K as a State without a Ruler.

 

Sheikh Abdullah was arrested under Nehru’s orders on the intervening night of August 8/9, 1953. Bakshi Ghulam Mohammad, deputy of Sheikh Abdullah, was installed as Prime Minister of J&K by Yuvraj Karan Singh who had been recognized as Sadar-e-Riyasat of J&K by the Central Government. Sheikh Abdullah was arrested, charged with heinous crimes, shifted to Madras State and put on trial for anti-national/secessionist activities. He was released in 1964 at the instance of then Prime Minister Indira Gandhi. He was installed in power as Chief Minister in 1977 under Indira-Sheikh Accord, 1975.

 

The J&K Constitution was introduced on January 26, 1957 under Bakshi Ghulam Mohammad. It was against all democratic norms and against the mandate of the Indian Constitution. The Jan Sangh, a new party that emerged at this time, had been opposing the separate Flag and constitution for J&K; it later merged into the Janata Party and later became the Bharatiya Janata Party.

 

The chairman of the Constituent Assembly, Dr. Bhimrao Ambedkar, introduced Article 370 despite his personal opposition, inserted clause (3) which clearly mentions that,

“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.”

 

It was a proviso added to this clause (3) which could not have continued after the demise of Constituent Assembly of J&K which expired on January 26, 1957. The proviso provided that, “the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

 

After January 26, 1957 the Constituent Assembly of J&K was dissolved and hence, Article 370 (3) shall read after 1957 as under:-

“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.”

 

The Parliament of India is competent to legislate at least in respect of three subjects namely, Defence, Foreign Affairs, Communication and Allied Matters. The President is competent to amend any provision within the scope of Article 370 which was (is) a temporary provision only.

 

As far as Article 35(A) is concerned, this has not been included in the pages of the Indian Constitution for the simple reason that Article 35 (A) was a stranger in the annals of the Constitution of India. The President of India was assigned power to deal within the meaning and scope of Article 370 alone. Article 35 was part and parcel of the domain of Fundamental Rights in the Indian Constitution. The President of India had no power whatsoever to interfere with the domain of Fundamental Rights.

 

Under Article 368 of the Constitution of India, the Parliament of India is alone competent to interfere with the domain of any Chapter of the Indian Constitution. Article 32 was in the domain of Fundamental Rights as Right to Property which was amended during the time of Morarji Desai as Prime Minister of India. A proper and specific procedure was adopted through the floor of the Parliament of India.

 

It was most tragic that Article 35 (A) introduced by the President of India in 1954, literally grabbed the Fundamental Rights of Indian citizens residing in the entire State of J&K. This legislative authority was vested with the Parliament of India alone.

 

It was this illegal, unconstitutional and undesirable Law (Article 35 A) which brought suffocation and untold miseries to the people of J&K. This author was imprisoned about 54 times by the rulers and spent nearly 8½ years in illegal detentions in Srinagar, Jammu, Kathua, Reasi and other prisons. About two dozen fellow students were killed by State bullets from 1959 till 2015. 

 

The Supreme Court of India has been the only saviour and protector of the civil liberties and unconfirmed Fundamental Rights of this author and his companions who have been fighting for implementation of rule of law in J&K. The famous ‘Bhim Singh vs. J&K & Ors’ that the Supreme Court decided in 1984, when Prof. Bhim Singh was a sitting MLA of the Panthers Party, can be read in all Law Books, where the Supreme Court of India directed the Government of J&K to pay a compensation of Rs.50,000/- (Fifty Thousands Only) to this author.

 

Last year, the Supreme Court of India directed the State of J&K to pay a compensation of Rs.2,00,000 (two lakh only) to Panthers Party’s general secretary, Anita Thakur and Rs.1,00,000 (one lakh) each to advocate H.C. Jalmeria and journalist P.K. Ganjoo. They were leading a Panthers Party procession from Reasi (Jammu) to Parliament for implementation of the Fundamental Rights of Jammu migrants.

 

The tragedy of Article 35 (A) is that it has conferred most draconian and dictatorial powers on the Government of J&K, which can destroy any of the Fundamental Rights of the Permanent Residents of J&K, within the meaning and scope of Article 35(A). The legitimacy of the Article is currently being heard by the Supreme Court of India.

First published http://www.vijayvaani.com/ArticleDisplay.aspx?aid=4410